Subject: Re: A new open source license
From: Martin Pool <>
Date: Tue, 18 May 1999 10:05:47 +1000

Ken Arromdee wrote:

> On Mon, 17 May 1999, [iso-8859-2] Matěj Cepl wrote:
> >       [MCepl]  I am not sure, that you are correct. What clause five
> > actually says is, that GNU GPL is accepted by conduct rather than by
> > giving notice of acceptance to offerror (in this case author of
> > software). It is not saying, that you accepted, but rather that you are
> > deemed to accept it. In other words, you cannot do any listed action
> > without permission from author (due to Copyright Act).
> I don't know if there is such a thing as "accepted by conduct" in US
> copyright law (I haven't heard anything about Czech law, of course). 

My understanding of Australian/British law is that "accepted by conduct"
underlies many everyday contracts: picking up goods in a shop implicitly
accepts an offer to sell.  Shrinkwrap software licenses are based on the
same thing.

> And even
> if there is, it might not apply if accepting the license violates some _other_
> law (re: MOSIX).

A contract may be invalid if it is illegal, but that doesn't mean the
contract was not accepted.  Probably the "as a consequence you may not
distribute the Program at all" clause applies, but I think the court has
some discretion to say that the licensee was frustrated by the export
laws in their attempt to comply.

 /\\\  Mincom | Martin Pool          |
// \\\        | Software Engineer    | (Not a lawyer)
\\ ///        | Mincom Pty. Ltd.     | 
 \///         | Teneriffe, Brisbane  | Speaking for myself only